BILL ANALYSIS
SENATE HEALTH AND HUMAN SERVICES
COMMITTEE ANALYSIS
Senator Martha M. Escutia, Chair
BILL NO: SB 588
S
AUTHOR: Rainey
B
AMENDED: April 14, 1999
HEARING DATE: April 21, 1999
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FISCAL: Appropriations
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CONSULTANT:
McCarthy
SUBJECT
Support obligations to CalWORKs recipients
SUMMARY
This bill makes changes to the child support enforcement
program for both cases involving public assistance and
cases not involving aid.
ABSTRACT
Current law establishes the Department of Social Services
as the "single state agency" responsible for the
administration of the federally required Child Support
Enforcement program (the IV-D program). The Department
administers funding for the program for both families
receiving CalWORKs benefits and for those families not
receiving CalWORKs but who request the services of the IV-D
program.
Under existing California statutes, the Department of
Social Services is required to contract with county
district attorneys for the operation of the program at the
county level. District attorneys are required to establish
child support orders and enforce payment of orders, among
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other requirements. Current law requires that CalWORKs
recipients assign to the county welfare department their
right to child support collections during the time they are
on aid. District attorneys attempt to recoup the public
aid (CalWORKs aid) provided to families in cases where the
obligor does not provide support for his or her children
while they are on CalWORKs. In such cases, the obligor
typically will owe not only the actual amount of public aid
provided to the child, but substantial interest penalties
that apply to overdue child support obligations (same
interest that applies to other legal judgments).
SB 588 would amend the Welfare and Institutions and Family
Code to make significant changes to child support
collections affecting CalWORKs and nonCalWORKs cases
including the following:
1)Retroactive child support -- changing the date of the
commencement of the child support obligation (i.e., the
date to which child support obligations can be made
retroactive) from the date of the filing of an order to
show cause or other pleading, to the date the obligor, or
alleged obligor, was served with a complaint or other
pleading. This change would apply to child support
obligations owed families currently on CalWORKs and to
other cases.
2)Amnesty for welfare debt -- allowing a court to suspend
the prospective accrual of interest on unpaid child
support debt owed to a county welfare department if
certain conditions are met.
3)Foster care child support guidelines -- revising the
formula (guideline) used to calculate the parent's child
support obligation when the child is not in the custody
of either parent (i.e., in foster care).
FISCAL IMPACT
Unknown at this time.
BACKGROUND AND DISCUSSION
1.Retroactive child support -- Existing law provides that
in cases of divorce, or separation or in paternity
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actions, a child support order can be made retroactive to
the date of the filing of specified documents with a
court. (An order to show cause or a notice of motion for
child support. Existing law also allows, in cases where
the family receives welfare, that a child support order
can be made retroactive to the date public assistance was
granted, up to a maximum of three years.
a. Eliminate 3-year retroactivity in welfare cases --
SB 588 would eliminate the provision of current law
permitting 3-year retroactivity of orders in cases
where the family is on public assistance. Sponsors of
the bill make the following arguments for eliminating
the 3-year retroactivity for such cases.
(1) Repealing the right to make the order
retroactive for three years in welfare cases would
render the program more equitable, by making the law
the same whether or not the family relies on welfare
due to nonpayment of support. The three-year
provision appears unfair to obligors, especially
when the family is on welfare only a short time.
(2) As reiterated in case law, when the legislature
adopted the provision for retroactive child support
in cases of public assistance, it was intended that
recoupment of benefit payments would alleviate
taxpayer burdens. However, the sponsors note that
under federal welfare legislation the primary
objective of the child support program is being
revised: obtaining child support for the family is
now the primary goal and reimbursement of welfare
costs is a secondary goal, especially when custodial
parents on aid face time limits.
(3) Obligors will be more likely to cooperate with
the payment of the smaller debt that will accrue if
the three-year retroactive provision is repealed.
However, the Committee may want to inquire of the
sponsors regarding the amount of potential loss in
recoupment dollars to the state which would result
from this provision of the bill.
b. Other cases-change in retroactivity provisions --
SB 588 would provide that a child support order may be
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made retroactive only to the date the complaint or
other pleading was served on the defendant being
ordered to pay support, not the date the order to show
cause or the notice of motion was filed with the
court. Under existing law, a party has three years
from the date of filing to serve a summons and
complaint.
Sponsors of SB 588 argue that:
(1) Child support should not start before the
obligor has been noticed of his or her potential
child support obligation. If substantial time
elapses between the time a notice of motion is filed
and the obligor is served a summons and complaint,
he or she may owe a significant amount of debt.
(2) However, it is questionable whether this
provision would have the unintended consequence of
further encouraging obligors and alleged obligors to
hide and avoid service, thus delaying and reducing
their ultimate child support obligation. In the
case where an absent parent successfully avoids
service of process for a number of years, during
which time his or her children receive public
assistance, what should be the absent parent's
obligation for child support? To what date should
it be retroactive?
2.Suspension of interest for public assistance debt -- SB
588 allows a court to suspend prospective accrual of
interest on an unpaid child support judgement (arrearage)
owed to a county welfare department for recoupment of
public assistance. SB 588 requires that in order to
suspend the interest accrual, the district attorney and
the obligor must stipulate to the suspension, subject to
the following conditions:
a. the obligor shall make immediate payment of all
child support owed to the family arrearages;
b. the obligor shall be required to make monthly
payments on the arrearages owed the county welfare
department, calculated to pay off the debt in a
"reasonable" period of time;
c. the obligor shall be required to meet all current
child support obligations.
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d. In addition, if an obligor fails to meet any of the
above conditions for a period of more than 60 days,
then interest will once again begin to accrue. An
obligor and district attorney would be allowed to
enter into this "suspension" of interest agreement
once in every 7 years.
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Supporters of the interest "amnesty" provision argue that:
a. Suspension of interest accrual for welfare debt
would encourage non-custodial parents with large
arrearages to come forward and meet current
obligations to their families, without the burden of
incurring more debt to the county welfare department.
However, this provision raises the question of whether
opponents have expressed concern that allowing amnesty
might encourage obligors to postpone making child
support payments. For example, if an obligor believes
that amnesty might be granted for future child support
interest accrual, would he or she be encouraged to pay
other debts such as credit card debt first?
The committee may want to inquire of the sponsors
whether similar interest amnesty programs have been
operated in other states and if, so, what was the
outcome? If the outcome is largely untested, what
legal obstacles would exist to operating the program
on a pilot basis in one or two counties?
3.This bill also would make changes to the formula
(guidelines) for calculating child support when neither
parent retains custody of a child (e.g., when the child
is placed in foster care). The Committee may with to
inquire regarding whether changes in payment rates or in
the amount of foster care child support recoupment are
anticipated as a result of this change.
POSITIONS
Support: Family Support Council (sponsor)
Oppose: None at this time
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